Richard Espinoza v. Office of Personnel Managment ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD A. ESPINOZA, DOCKET NUMBER
Appellant, DE-0843-21-0125-I-1
v.
OFFICE OF PERSONNEL DATE: December 22, 2023
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Richard A. Espinoza , Arvada, Colorado, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of the decision of the Office of
Personnel Management (OPM) denying him death benefits. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
initial decision, and REMAND the case to the Denver Field Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
On February 22, 2021, the appellant filed an appeal challenging a decision
by OPM that he was not entitled to a lump sum benefit based on the Federal
service of his late father. Initial Appeal File (IAF), Tab 1 at 4. On the appeals
form, the appellant answered “no” in response to the question that asked if he had
received a final decision from OPM. Id. at 3. In a Jurisdiction Order, the
administrative judge explained that, with limited exceptions, the Board has
jurisdiction over retirement matters only after OPM has issued a final decision
after a request for reconsideration of an initial decision. IAF, Tab 3 at 2. The
administrative judge advised the appellant that, if OPM has not yet issued a final
decision, the Board lacks jurisdiction over the matter and he would have to
request reconsideration, wait for a final decision from OPM, and then file a Board
appeal. Id. at 2-3. However, the administrative judge ordered that, if the
appellant believed that the Board has jurisdiction over his appeal, he must file
evidence and argument showing that the matter is within the Board’s jurisdiction,
and, if he was attempting to appeal an OPM final decision, he should provide a
copy. Id. at 3. The appellant did not respond.
In an initial decision, the administrative judge dismissed the appeal for lack
of jurisdiction. IAF, Tab 4, Initial Decision at 1, 3-4.
ANALYSIS
With his petition for review, the appellant has submitted, inter alia, a copy
of OPM’s February 1, 2012 final decision finding him ineligible to receive a lump
sum benefit based on his late father’s death. Petition for Review (PFR) File,
Tab 2 at 6.
As the administrative judge correctly found, the Board generally lacks
jurisdiction over a retirement appeal when OPM has not issued a reconsideration
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decision or final decision on the matter. See, e.g., Sims v. Office of Personnel
Management, 94 M.S.P.R. 102, ¶ 10 (2003). While the record below failed to
show that OPM had issued such a decision, the record on review establishes that
OPM had, in fact, issued the required final decision. PFR File, Tab 2 at 6.
Because OPM’s final decision establishes jurisdiction and was in effect
throughout the time the appeal was pending below, the proper remedy is to
remand the appeal to the field office for adjudication on the merits. 2 Moorer v.
Office of Personnel Management, 104 M.S.P.R. 609, ¶ 10 (2007).
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
2
We note that OPM had already issued its final decision before the appellant filed his
appeal, and although he referred to it in his appeal, IAF, Tab 1 at 3, he did not submit it
until he filed his petition for review. However, it is relevant to the issue of the Board’s
jurisdiction, a matter that may be raised at any time during the Board proceedings, and
therefore, it is appropriate to consider it. Stoglin v. Department of the Air Force,
123 M.S.P.R. 163, ¶ 7 (2015), aff’d, 640 F. App’x 864 (Fed. Cir. 2016).